Defenses That a Defendant May Use in a Wrongful Death Suit
When a loved one suffers an untimely death in an accident or other incident, you want answers. If your initial search turns up evidence that the negligence of another person or party caused the death, you may consider filing a wrongful death claim. Georgia law allows those most closely related to the deceased person to file a wrongful death claim and pursue a lawsuit in court, but it also provides several avenues of defense for those the claim or lawsuit is filed against.
Defenses are complicated in every state. Several defenses may be available, and a defendant trying to escape liability for negligence may try to argue all the applicable defenses at once. At Grant Law Office our experienced Atlanta wrongful death lawyers can help you confront any defense with the best possible evidence establishing your case. We can be reached at (866) 249-5513 or (404) 995-3955 and offer free consultations.
Procedural defenses are based not on the facts or "merits" of the case, but on how the case is filed or carried forward. Two common defenses raised in Georgia negligence cases, including wrongful death, are that the case is barred by the statute of limitations or that the complaint filed with the court "fails to state a cause of action upon which relief can be granted" - in other words, that even if everything the complaint says is true, the law has no power to do anything about it. Most procedural defenses can be addressed by an experienced Georgia attorney.
"Affirmative defenses" are defenses based on facts other than those presented to make the negligence case itself. Most affirmative defenses must be proven by the defendant who raises them. Several affirmative defenses apply to negligence cases, and one or more of them may apply in any particular wrongful death case, including the following:
- Assumed risk argues that the deceased person knew that one of the dangers involved in a particular action was death but undertook the action anyway. The existence of a waiver of liability helps establish an assumed-risk defense, but it is not enough to prove assumed risk in some cases.
- Self-defense or defense of others argues that the defendant acted to prevent the deceased person from killing or gravely injuring the defendant or another individual. Typically, this defense applies only to individual humans, not to corporations or other entities.
- Comparative negligence. Comparative negligence in Georgia reduces or eliminates the defendant's liability depending on the amount of fault assigned to the deceased person for the accident or incident that caused death. If the deceased person is less than 50 percent at fault, damages are reduced by the amount of fault assigned to the deceased person. If the deceased person is 50 percent or more at fault, no damages are awarded.
The defenses listed here are just a few of the more common arguments a deceased person's family might face during a fatal accident claim. Which defenses are actually carried out usually depends on the particular facts of the case. At Grant Law Office, our experienced attorneys can help you build a case that is prepared to respond to any defenses and that states the strongest possible claim on your behalf. Contact us at (866) 249-5513 or (404) 995-3955 today to learn more.
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